# Opposition — Kaufman v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 901

## Text

No. 80-216 | Supreme Court, U. S.
D

SEP
Supreme Court ne the Unite State. ie. ocr

Octoser TrrM, 1979

CHARLES KAUFMAN,
Petitioner,

Vs.

STATE OF NEW JERSEY and JOHN J. DEGNAN,
as Attorney General of the State of New Jersey,

Respondents.

On Petition for a Writ of Certiorari to the
Supreme Court of New Jersey

BRIEF IN OPPOSITION

JoHn J. Deanan,
Attorney General of New Jersey,
Attorney for Res — State of
New Jersey, et a
State House Annex,
Trenton, New Jersey 08625.
(609) 452-9500
Joun DeCicco,
Assistant Attorney General,
Division of Criminal Justice,
ae Con Section,
Counsel.

Mary Ann Kenny Prnceon,
Deputy Attorney General,

f Counsel and

On the Brief.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

Questions Presented

1. Does the record support the question as stated by
petitioner when petitioner lacks standing to coutest the
search, there was probable cause to search the limousine
and the flight bag, the chauffeur consented to the search,
exigent circumstances were present, contraband was in
plain view of the police officer and the search was incident
to a valid arrest?

2. Does the petition present a substantial question when
this Court has previously decided that Chadwick and Sand-
ers are not to be applied retroactively?

Li]

TABLE OF CONTENTS

PAGE
QUESTIONS PRESENTED ........ 1
ES SRR 1
SL EOD ON OO 2
ConsTITUTIONAL Provisions, Statutes AND Rutes In-
Nee icictetncvicnisuvescnansevteneuroenvese 2
STATEMENT OF THE CASE .....-..--2

BRIEF IN OPPOSITION

Opinions Below

The Order of the New Jersey Supreme Court denying
petitioner’s petition for certification is appended to peti-
tioner’s Petition for Certiorari as Appendix B. The unre-
ported opinion of the Superior Court of New Jersey, Ap-
pellate Division, is appended to the Petition as Appendix A.

Jurisdiction

Petitioner asserts 28 U.S.C. see. 1257(3) as the basis for
this Court’s jurisdiction over his case. The State agrees
that this Court has jurisdiction.

Constitutional Provisions, Statutes and Rules Involved

United States Constitution, Amendment IV:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly de-
scribing the place to be searched, and the persons
or things to be seized.

N.J.S.A. 24:21-19 Prohibited acts A.—Manufacturing, dis-
tributing or dispensing—Penalties

a. Except as authorized by this act, it shall be un-
lawful for any person to knowingly or intentionally:
1. To manufacture, distribute or dispense or to pos-
sess or have under his control with intent to manu-
facture, distribute or dispense, a controlled danger-
ous substance.
” * *
N.J.S.A. 24:21-20. Prohibited acts B.—Possession, use or
being under influence—Penalties

A. It is unlawful for any person, knowingly or
intentionally, to obtain, or to possess, actually or
constructively, a controlled dangerous substance un-
less such substance was obtained directly, or pursu-
ant to a valid prescription or order from a practi-
tioner, while acting in the course of his professional

practice, or except as otherwise authorized by this
act.

(1) A substance, in a quantity of less than 1 ounce
including any adulterants or dilutants, classified in
Schedule I or II which is a narcotie drug, or in a
quantity of 1 ounce or more with there being in-
cluded less than 3.5 grams of the pure free base
Schedule I or II narcotic drug, and any other con-
trled dangerous substance classified in Schedule
I, IT, IT or IV is guilty of a high misdemeanor and
shall be punished by imprisonment for not more than
5 years, a fine of not more than $15,000.00, or both,
except as provided in subsection a. (4) below;

(4) Possession of more than 25 grams of marijuana,
including any adulterants or dilutants, or more than
5 grams of hashish is guilty of a high misdemeanor
and shall be punished by imprisonment for not more
than 5 years, a fine of not more than $15,000.00, or
both; provided, however, that any person who vio-
lates this section with respect to 25 grams or less
of marijuana, including any adulterants or dilu-
tants, or 5 grams or less of hashish is a disorderly
person.

Statement of the Case

Hunterdon County Indictment No. I-274-M-76 charged
petitioner and Charles Wilezenski with unlawful posses-
sion of marijuana, contrary to N.J.S.A. 24:21-20(a) (4)
(Count 1), unlawful possession of opium, methaqualude and
cocaine in violation of N.J.S.A. 24:21-20(a)(1) (Count 2),
and unlawful possession of the above named controlled
dangerous substances with intent to distribute in violation
of N.J.S.A. 24:21-19(a)(1) (Count 3). Petitioner filed a

4

motion to suppress evidence on July 19, 1978, before the
Honorable Richard Barlow, J.S.C.. This motion was de-
nied by Judge Barlow on July 27, 1978.

The following facts were adduced at the motion to sup-
press evidence. At approximately 7 a.m. on April 29, 1977,
Officer Dennis M. Balent of the Bridgewater Police Depart-
ment set up a radar speed trap on Route 22 in Somerset
County. Forty-five minutes later, Officer Balent clocked
a late model blue Lincoln Continental going 74 m.p.h. in
the west bound lane. Officer Balent pursued the limousine
into Readington Township, Hunterdon County. He moved’
his patrol car behind the limousine and put on the overhead
lights. The car did not stop. The officer turned on his
siren, At this time, he estimated that the car was travel-
ling at 80 m.p.h. After traveling a half a mile, the driver
pulled the car over to the curb. The limousine was a new,
“shiny”, four door Lincoln Continental with New York
rental plates. (215-17 to 25; 2T6-1 to 25; 2T'7-1 to 25).*

Officer Balent approached the car and asked the driver
for his credentials. The driver asked why he was being
stopped. Officer Balent responded that the driver had been
speeding. While the driver searched for his driver’s license,
registration and insurance card, the Officer observed that
the driver was wearing a gray suit similar to that worn
by a chauffeur. Officer Balent then looked in the back seat
of the limousine where he saw two men: one dressed in a
yellow jacket, blue T-shirt and blue jeans and the other

* 1T through 5T refers to the transcripts of the motion to sup-
press dated June 28, 1978, July 19, 1978, September 15, 1978, Octo-
ber 17, 1978 and December 15, 1978, respectively. 2AT refers to
the second volume of the transcript dated July 19, 1978. Da refers
to Petitioner’s appendix to his Appellate Division brief.

5

dressed in a flannel shirt and blue jeans.* Officer Balent
also saw one-half to two inches of a clear plastic bag pro-
truding from the front pocket of the yellow jacket worn
by the passenger seated in the left side of the limousine.
Inside the bag, a white powder clinging to the sides was
clearly visible. Based upon his training and experience
with the identification of controlled substances, Officer
Balent knew that illegal drugs were often contained in
clear plastic bags. He also determined that the white pow-
der in the clear plastic bag appeared to be a controlled
dangerous substance. (2141 to 10; 2T9-1 to 25; 2T10-L
to 25; 2T11-20 to 25).

Because of the observation of the bag containing the
white powder, Officer Balent knocked on the window and
asked the passenger codefendant, Edward F. Wilezenski,
to give him the bag. Wilezenski complied. Officer Balent
examined the bag and saw that the corners had been cut
off the bag.** (2T2-1 to 10; 2T10-19 to 25).

By this time, the driver located his credentials. He was
Peter Livshits of 2730 West 33rd Street, New York City.
Livshits was employed by a limousine rental agency in
New York. (2T12-10 to 14).

After examining the chauffeur’s credentials, Officer
Balent asked Wilezenski to exit the car, which he did. The

* Officer Balent told the court at the hearing on the motion to
suppress that the passengers “did not appear to be the kind of
people who would be passengers in a limousine.” (2T9-11 to 12).
The officer’s assessment was simultaneous with his observation of
the clear plastic bag containing cocaine in codefendant’s pocket.
(2T23-11 to 13).

** A later search revealed that the corner of the bag was in Wil-
czenski’s sock. The corner of the bag contained cncaine. (2T19-10
to 11).

6

men moved to the back of the car. Officer Balent advised
Wilezenski of his rights and then asked him about the
plastic bag. Wilezenski replied that he found it on the
floor of the car when he entered the car in New York.
Officer Balent asked Wilezenski for identification and Wil-
ezenski produced a Pennsylvania driver’s license. (2T12-
16 to 25; 2T13-1).

While Officer Balent interrogated Wilezenski, Patrol-
man Robert Smith of Readington Township Police De-
partment and Officer James Paliani of the Bridgewater
Township Police Department arrived as backup. Officer
Paliani took Wilezenski into custody, while Officer Balent
questioned Livshits. Livshits denied seeing the clear plas-
tic bag before the officer found it in Wilezenski’s pocket.
Livshits said that he cleaned and vacuumed the passenger
compartment before he picked up the fares and there was
no plastic bag in the car at that time. Officer Balent asked
Livshits if he could search the limousine and Livshits
consented. (2T13-1 to 25; 2T14-1 to 10).

Officer Balent instructed Patrolman Smith to question
the other passenger.* Patrolman Smith recognized the
passenger as petitioner, Charles Kaufman. He asked peti-
tioner to exit the car, but petitioner refused. After a few
minutes of argument described as a “boisterous” “shout-
ing incident,” petitioner complied. When the door opened,
Officer Smith saw a brown leather flight bag on the limou-
sine floor between petitioner’s legs. Officer Smith saw a
white residue on top of the bag. (2T14-1 to 25; 2T15-1.to
25; 2T42-16 to 22; 2T43-1 to 19).

* Although Officer Balent testified that petitioner was not under
arrest at this time, petitioner was being held in police custody
and was not free to leave. (2T28-21 to 25).

Officer Balent entered the limousine, and searched the
front seat and glove compartment. He found no contra-
band. He looked in the back seat and saw a brown leather
flight bag on the floor of the right rear passenger seat
where petitioner had been seated. A white powder resi-
due, similar to the white powder contained in the plastic
bag found in Wilezenski’s possession, was on both sides
of the brown metal zipper. The white powder was easily
visible against the brown bag. The bag had three zippers.
Officer Balent opened the middle zipper and found a brown
paper bag which he opened. <A second paper bag was in-
side. Officer Balent opened that bag and found three clear
plastic bags containing white powder, three clear plastic
bags containing marijuana and another bag containing
white pills. Officer Balent lifted out the large paper bag
and underneath it, he found another bag containing white
powder, a clear plastic bag containing a large chunk of a
black substance and two clear plastic bags wrapped with
a rubber band. One of these bags contained marijuana,
the other was filled with white pills. (2T15-8 to 16; 2T16-1
to 25; 2T17-1 to 25; 2T18-1 to 18).

Officer Balent arrested petitioner and Wilezenski, hand-
cuffed them and placed them in the patrol car. After Of-
ficer Balent advised petitioner of his constitutional rights,
petitioner said that he never saw the bag before. (2T19-1
to 25).

Laboratory tests of the contraband determined that pe-
titioner possessed the following controlled dangerous sub-
stances: 822.99 grams of cocaine and xylocaine (1.94
pounds), 120.65 grams of marijuana, 26.57 grams of opium
and 40 white pills containing methaqualone. (1T9-9 to 25;
1T10-1 to 11).*

* The laboratory report was accepted into evidence at the motion
to suppress, [2146-24 to 25] but its contents were only set forth
in detail during the Grand Jury testimony of Officer Balent.

8.

Pursuant to a plea bargain, petitioner entered a guilty
plea to Count 3 on October 17, 1978.

In an unpublished opinion, the Superior Court of New
Jersey, Appellate Division, affirmed the conviction below
on March 24, 1979. (Pa2). Petitioner’s petition for cer-
tification to the New Jersey Supreme Court was denied
on February 27, 1980. (Pal).

REASONS FOR DENYING CERTIORARI
POINT I

The record does not support petitioner’s question.

Petitioner relies solely upon this Court’s decisions in
Umted States v. Chadwick, 433 U.S. 1 (1977) and Arkansas
v. Sanders, 442 U.S. 753 (1979) to support his contention
that the searches of the limousine and the flight bag were
a violation of his constitutional rights. Because these
cases were decided after the search, petitioner also sub-
mits that Chadwick and Sanders must be applied retro-
actively in order to invalidate the search at issue, The
State of New Jersey respectively submits that the ques-
tion of retroactivity is not properly presented to this
Court because the record below demonstrates that Chad-
wick and Sanders are totally inapplicable to the facts in
question. For that reason, the issue of the retroactive
application of Chadwick and Sanders need not be addressed
by this Court. :

The State of New Jersey will demonstrate that the
searches of the limousine and the flight bag were totally
dissimilar to the facts in Chadwick and Sanders, and the
search was clearly permissible under Chambers v. Maroney,
399 U.S. 42, 49-50 (1970) and Carroll v. United States, 267
U.S. 132, 153 (1925). In Chadwick, the police had known

9

for several days that a drug shipment would arrive by
train in Boston, however, the authorities obtained neither
an arrest warrant nor a search warrant. When the sus-
pects arrived with the footlocker at the train depot, the
police were there surveilling their activities. Police dogs
verified that the locker contained a controlled dangerous
substanee. As soon as the locker was placed in a waiting
ear, the suspects were arrested and the locker was trans-
ported to the federal building. An hour and a half after
the arrests, the federal agents opened the footlocker with-
out first securing a warrant. 433 U.S. at 3. This Court
ruled that “when no exigency is shown to support the need
for an immediate search, the warrant clause places the
line at the point where the property to be searched comes
under the exclusive domain of police authority.” Jd. at 16.

The Government did not contend in Chadwick that the
footlocker’s brief conteet with Chadwick’s car justified a
warrantless search under the automobile exception. In
fact, as noted in the dissenting opinion, “if the agents had
postponed the arrest until the respondents started to drive
away then the car could have been seized, taken to the
agents’ office, and all its contents—including the footlocker
—searched without a warrant.” 433 U.S. at 15. Thus,
the scope of Chadwick is extremely narrow. Moreover, the
sole justification argued by the Government for the Chad-
wick search was the theory that the Warrant Clause of the
Fourth Amendment has absolutely no application to
searches conducted outside of “private dwellings and a few
other high privacy areas.” 433 U.S. at 13. There was no
attempt made to rely on either the automobile exception
or the search incident to an arrest exception to the warrant
requirement. a a

Moreover, nothing in the opinion suggested that it was
intended to overrule prior opinions which extended the

10

“automobile search” exception from the warrant require-
ment to the contents of locked compartments, including
glove compartments and trunks. See J'exas v. White, 423
U.S. 67 (1975), reh. den, 423 U.S. 1081 (1975); Cady v.
Dombrowski, 413 U.S. 483 (1973); Chambers v. Maroney,
399 U.S. 42 (1970), reh. den. 400 U.S. 856 (1971). Thus,
many appellate courts have refused to interpret Chadwick
as a per se rule prohibiting warrantless searches of lug-
gage situated in cars, and have applied instead the prob-
able cause standard relevant to the “automobile excep-
tion.” Unite’ States v. Finnegan, 568 F.2d 637, 640-642
(9 Cir. 1977); United States v. Young, 567 F.2d 799, 802
n.3 (8 Cir. 1977), cert. den, 439 U.S. 1079 (1978) ; United
States v. Matlock, 558 F.2d 1328 (8 Cir. 1977), cert. den.
434 U.S. 872 (1970); cf. United States v. Berry, 560 F.2d
861 (7 Cir. 1977) rev’d in other grounds 571 F.2d 2 (7
Cir, 1978), cert. den. sub nom. Richardson v. United States,
439 U.S. 840 (1978).

In Sanders, the police received a tip that defendant was
arriving on an American Airlines flight at 4:35 that after-
noon and that defendant would be carrying a green suit-
case containing marijuana. The police surveilled the air-
port and saw defendant arrive and pick up a green suitcase
at the airline luggage service. Defendant gave the suit-
case to a companion, who put the suitcase in the trunk of
a taxi. The police stopped the taxi outside the airport.
The taxi driver opened the trunk at the request of the po-
lice and the police seized the green suitcase. A search
of the suitcase revealed 9.3 pounds of marijuana, 442 U.S.
at 755.

The Sanders Court ruled that the search of the suit-
case was unlawful because of the lack of the exigency of
mobility immediately prior to the search and the expecta-
tion of privacy inherent in suitcases. However, Sanders

11

created an exception to its rule when it stated that some
containers “by their very nature cannot support any rea-
sonable expectation of privacy because their contents can
be inferred from their outward appearance.” 442 U.S. at
765 n.13. The Court ruled that when the contents of the
package are open to plain view, the warrant requirement
is obviated. Id.

Justice Powell, speaking for a majority of the Court,
noted that the case had been accepted by a writ of certio-
rari to the Supreme Court of Arkansas “to resolve some
apparent misunderstanding as to the application of [the
Court’s] decision in United States v. Chadwick, [supra],
to warrantless search of luggage seized from an automo-
bile.” Id. at 754. However, as noted by the Honorable
Chief Justice Burger, (concurring), the Sanders opinion
did not involve the automobile exception of the warrant
requirement. This was particularly true since the police
had probable cause to search the luggage before it was
placed into the trunk of the taxi cab. See Arkansas v.
Sanders, supra at 766 (Burger, C.J. concurring). In
Sanders, swpra, the relationship between the luggage
searched and the automobile was “purely coincidental,”
as in Chadwick. Id. at 767. “[Sanders] simply does not
present the question of whether a warrant is required be-
fore opening luggage when the police have probable cause
to believe contraband is lecated somewhere in the vehicle
...” (Id.) (emphasis in original).

The case currently under review presents the question
of whether a warrant is required before law enforcement
officials may search an automobile when they have no
advance notice that a particular individual may have con-
traband on his person or in his luggage. For this reason
the facts of Chadwick and Sanders differ substantially
from the case at bar. First, it is apparent that petitioner

12

lacks standing to contest these searches under this Court’s
recent decision in United States v. Salwucci, —— US.
—, 100 S.Ct. 2547 (1980). See also Rakas v. Illinois,
439 U.S. 128, reh. den. 439 U.S. 1122 (1979). Petitioner
failed to assert that his constitutional rights had been vio-
lated because the testimony presented at the motion to
suppress demonstrated that petitioner denied a possessory
interest in the flight bag. (2T19-1 to 25). Thus, he lacks
standing to contest the legality of the search of the bag
and the limousine.* See Id.

Second, there was probable cause to search the limousine
when Officer Balent looked in the vehicle, which he had
stopped for a speeding violation, to observe the passen-
gers. As the officer observed the passengers, he saw one
and a half to two inches of a clear plastic bag protrud-
ing from passenger Wilezenski’s pocket. It was readily
apparent that the bag contained a residue of white powder.
(2T23-11 to 13). Because of his training and experience in
the identification of controlled dangerous substances, Of-
‘ficer Balent knew that illicit drugs were often transported
in baggies.** Consequently, the police officer formed a
“well grounded suspicion” that the white powder in the
baggie was a controlled dangerous substance. (2T4-1 to
10; 2T9-1 to 25; 2T10-1 to 25; 2T11-20 to 25). See Cham-
bers v. Maroney, swpra.

Additional probable cause was provided by the fact that
Wilezenski was nervous and evasive while Officer Balent

* The question of standing was not raised below.

** The decision was based upon five years experience as a police
officer, a forty hour course conducted by the New Jersey State
Police concerning identification of controlled dangerous substances
and their packaging, and involvement in approximately 70 to 75
drug investigations and arrests. (2T5-1 to 12).

13

questioned him. Moreover, petitioner refused to exit the
limousine and engaged in a boisterous exchange with Of-
ficer Smith before he complied with the officer’s order to
exit the limousine. (2T19-1 to 25). See id.

An additional reason why the present facts differ dras-
tically from Sanders and Chadwick is that the chauffeur
of the limousine consented to the search of the vehicle. See
United States v. Matlock, 415 U.S. 164, 188 (1974) ; Frazier
v. Cupp, 394 U.S. 731, 733 (1969); Bumpers v. North Caro-
lina, 391 U.S. 543 (1968). The chauffeur was the agent of
the owner and exercised dominion and control over the
vehicle. Petitioner and Wilezenski merely rented the
limousine for a ride from New York, New York, to Easton,
Pennsylvania. Therefore, neither passenger had a pos-
sessory interest nor an expectation of privacy in the vehi-
cle. See United States v. Salvucci, supra; Rakas vy. Illinois,
supra. See also Katz v. United States, 389 U.S. 347, 357
(1967). Clearly, the officer lawfully entered and searched
the limousine. See Chambers v. Maroney, supra; Carroll
v. United States, supra.

Third, the facts surrounding the search of the brown
leather flight bag are also distinguishable from Sanders
and Chadwick because of the exigent circumstances pres-
ent. In the case at bar, the car was stopped on the side
of the highway early on a Sunday morning for a speeding
violation. One of the passengers possessed a baggie con-
taining a white powder residue in plain view of the officer.
This passenger, Wilezenski, was nervous and evasive when
he spoke. Officer Smith observed a brown leather flight
bag with a white powder residue on its top when he opened
the door beside the petitioner’s seat. At first, petitioner
refused to exit the limousine, but when petitioner did leave
the vehicle, Officer Balent also observed the bag and the
powdery residue on the top zipper of the bag. Officer Bal-
ent searched the bag and discovered cocaine, opium, quaa-

14

ludes and marijuana. After the search, petitioner dis-
avowed ownership of the bag. (2T15-8 to 16-1 to 25; 2T17-1
to 25; 2T18-1 to 18; 2T19-1 to 25).

This was not the type of search involved in Chadwick
and Sanders. There was no informant’s tip to law en-
forcement officials to watch for a blue limousine with
New York plates, carrying two blue-jean-clad passengers
with a brown leather flight bag containing a half million
dollars worth of drugs. In fact, this case was precisely
the type of search sanctioned in Chambers and Maroney.
Because the police officers had no advance notice of the
drugs, they had no prior opportunity to acquire a search
warrant. Moreover, prior to the search of the limousine,
Officer Balent had no probable cause to search the bag.
The primary search was a search of the vehicle and the
placing of the luggage therein was not merely “coinci-
dental.” Cf. Arkansas v. Sanders, supra at 767. Further-
more, this case differs because even though two back up
officers assisted Officer Balent, petitioner and his passenger
nonetheless could have attempted to harm the officers or
escape with the flight bag as the stop occurred along a
highway at 7 a.m. on a Sunday morning. Clearly, the
suspects could have had concealed weapons, fired at the
police and fled the scene in the limousine or on foot. The
police could have prevailed upon few to assist them at that
hour, in that location and under those circumstances. Thus,
neither the automobile nor the contents were under exclu-
sive control of the police. Clearly exigent circumstances
existed when Officer Balent opened the flight bag and be-
cause of the inherent mobility of the automobile, destruc-
tion of that evidence was clearly possible. See Chambers
v. Maroney, supra. See also United States v. Fontecha,
576 F.2d 601 (5 Cir. 1978).

This case falls squarely within the automobile exception
also because the officers were faced with the fact that the

15

chauffeur appeared to have no knowledge of drugs found
on Wilezenski. Therefore, under petitioner’s view of the
law, the officers would have had to release the chauffeur
and his vehicle and thus lose the bag covered with illicit
drugs. Under this type of exigent circumstances, the
search of the bag was reasonable. See Chambers vy.
Maroney, supra.

An additional compelling difference caused by the police
officers’ lack of advance notice that passengers would be
ferrying drugs through New Jersey is the untenable posi-
tion of the police who lawfully searched the limousine, but
under petitioner’s strained reading of Chadwick and Sand-
ers, would have to unload the luggage, covered with illicit
drugs, place it on the side of the road and obtain a war-
rant for the search of the luggage while they lawfully
searched the vehicle. This interpretation of the law places
an onerous burden not only upon law enforcement officials
but also upon innocent passengers who may be detained
while a magistrate is sought.

Fourth, this case differs from Chadwick and Sanders
because the white powder residue on the flight bag an-
nounced to the investigating officers that the bag contained
illicit drugs. This residue, coupled with the discovery of
the white powder residue in Wilezenski’s pocket, demon-
strates that the “very nature” of the flight bag cannot sup-
port a reasonable expectation of privacy. Therefore, the
search of the flight bag was proper because this Court in
Sanders expressly distinguished these facts from its ap-
plication. Jd. at 765, n.13. See also Harris v. United States,
390 U.S. 234 (1968); United States v. Pugh, 566 F.2d 626
(8 Cir. 1977).

Finally, in addition to the automobile exception to the
warrant requirement, the court below ruled that these
searches were lawful because at least two additional excep-

16

tions were also applicable. The first was the search inci-
dent to a lawful arrest exception. The trial court reasoned
that the searches were lawful because the searches occur-
red after the lawful arrest of Wilezenski.* See generally
Cupp v. Murphy, 412 U.S. 291 (1973) ; Chimel v. California,
395 U.S. 752 (1969). Additionally, the court ruled peti-
tioner’s arrest was reasonably contemporaneous to the
search and was thus valid under State v. Doyle, 42 N.J.
334, 342, 200 A.2d 601 (1964). Secondly, the trial court
ruled that the search of the flight bag was proper because
the contraband contained in the bag fell within the plain
view of the officers. See Harris v. United States, 399 U.S.
294 (1968); State v. Braxton, 111 N.J.Super. 191, 264 A.2d
757 (App.Div. 1970). Thus the trial court ruled that the
search of the limousine and the flight bag was proper be-
cause the case was distinguishable from United States v.
Chadwick, and within the automobile exception, the search
incident to a lawful arrest exception and the plain view
exception. (2AT16-1 to 25; 2AT38-19 to 22; 2AT40 to
2AT49).

In short, the State of New Jersey respectfully submits
the lower court’s denial of the motion to suppress was
proper. The facts in the present case differ so substan-
tially from those decisions because in this case the police
properly perceived the requisite probable cause and exigen-
cies. These facts fall within the automobile exception pro-
vided in Chambers v. Maroney. Moreover, the fact that a
white powder residue was on top of the flight bag excepts
its search from Sanders because it was apparent from plain
view that it contained illicit drugs. For these reasons, the

* The Superior Court of New Jersey, Appellate Division, affirmed
Judge Barlow’s opinion for the reasons expressed in his oral ruling
dated July 19, 1978. (PaA). The Supreme Court of New Jersey
expressed no reasons for its ruling. (PaB).

17

State of New Jersey respectfully submits that the facts
of Chadwick and Sanders are inapplicable to the present
ease and therefore, the record does not support peti-
tioner’s request for the retroactive application of those
eases. Finally, petitioner lacks standing to contest the
validity of the search. Therefore, the petition for certio-
rari should be denied.

POINT II

The petition does not present a substantial question
because decisions of this Court indicate that Chadwick
and Sanders shali not be applied retroactively.

In the event that this Court finds that Chadwick and
Sanders are applicable to the present case, the State re-
spectfully submits that the precedents established by this
Court mandate prospective application of those decisions.
Thus, because the search of the limousine occurred in
April, 1977, and prior to the Court’s decisions in Chadwick
and Sanders, the petition fails to state a substantial ques-
tion and must be denied.

This Court has considered the retroactive application of
Fourth Amendment to search and seizure questions in
United States v. Peltier, 422 U.S. 531 (1975). At the out-
set, the Court explained:

Since 1965 this Court has repeatedly struggled with
the question of whether rulings in criminal cases
should be given retroactive effect. In those cases
“Twlhere the major purpose of new constitutional
doctrine is to overcome an aspect of the criminal
trial that substantially impairs its truth-finding funce-
tion and so raises serious questions about the accu-

18

racy of guilty verdicts in past trials,” the doctrine
has quite often been applied retroactively. It is in-
disputable, however, that in every ease in which the
Court has addressed the retroactivity problem in
the context of the exclusionary rule, whereby con-
cededly relevant evidence is excluded in order to
enforce a constitutional guarantee that does not
relate to the integrity of the factfinding process,
the Court has concluded that any such new consti-
tutional principle would be accorded only prospec-
tive application. [Jd. at 535, (citations omitted) ].

Moreover, the Peltier Court set forth two policies as sup-
porting the prospective application of the exclusionary
rule: 1) the “imperative of judicial integrity,” which was
set forth in Elkins v. United States, 364 U.S. 206, 222
(1960), and 2) the deterrence of illegal police conduct,
which is often cited as the rationale underpinning the ex-
clusionary rule. United States v. Peltier, swpra 422 U.S.
at 536. See generally Brown v. Louisiana, —— U.S. ——,
100 S.Ct. 2214 (1980).

In Peltier, the Court reviewed the decisions concerning
retroactivity and concluded that the maintenance of judi-
cial integrity required that:

The teaching of these retroactivity cases is that if
the law enforcement officers reasonably believed in
good faith that evidence they had seized was ad-
missible at trial, the “imperative of judicial in-
tegrity” is not offended by the introduction into
evidence of that material even if decisions subse-
quent to the search or seizure have broadened the
exclusionary rule to encompass evidence seized in
that manner. [Jd. at 537]

19

The Court continued its review and reached a similar con-
clusion concerning the question of deterrence:

If the purpose of the exclusionary rule is to deter
unlawful police conduct, then evidence obtained from
a search should be suppressed only if it can be said
that the law enforcement officer had knowledge, or
may properly be charged with knowledge, that the
search was unconstitutional under the Fourth
Amendment. [Jd. at 542]

Finally, the Peltier Court noted that earlier decisions had
pointed to the added burden on the administration of
justice as a consideration. 422 U.S. at 534, quoting Stovall
v. Denno, 308 U.S. 298, 297 (1967).*

In the case at bar, the State respectfully submits that
the police officers acted reasonably and should not be
charged the knowledge that the search of petitioner’s flight
bag may have been illegal. It is our position that Chad-
wick and Sanders marked a shift in the law, even though
the Court did not expressly overrule any prior decisions.
See United States v. Calandrella, 605 ¥'.2d 236, 251 (9 Cir.
1979), cert. den. sub nom. Kaye v. United States, ——
U.S. ——, 100 S.Ct. 522 (1979); United States v. Berry,
560 F.2d 861, 863-64 (7 Cir. 1977), vacated on other
grounds 571 F.2d 2 (7 Cir.), cert. den. sub. nom. Richard-
son v. United States, 439 U.S. 840 (1978). See also United
States v. Peltier, supra, 422 U.S. at 544-49, (Brennan, J.,
dissenting).

There is no question that the search and seizure in the
present case were consistent with the law of the United

* The New Jersey courts follows this criteria when addressing
questions of retroactivity. See e.g., State v. Patino, 83 N.J. 1,
—— A.2d —— (1980); State v. Howery, 80 N.J. 563, 404 A.2d

1111 (1979),

20

States Supreme Court at that time. See e.g., United States
v. Edwards, 415 U.S. 800 (1974); United States v. Robin-
son, 414 U.S. 218 (1973); Abel v. United States, 362 US.
217 (1960); Draper v. United States, 358 U.S. 307 (1959).
The courts of the State of New Jersey also set forth no
reason to conclude that suitcases carried in automobiles
would not fall within the automobile exception to the war-
rant requirement. See generally State v. Waltz, 61 N.J.
83, 86, 293 A.2d 167 (1972); State v. Barnes, 54 N.J. 1, 252
A.2d 398 (1969), cert. den. 396 U.S. 1028 (1971); State v.
Hock, 54 N.J. 526, 257 A.2d 699 (1969), cert. den. 399 U.S.
930 (1970); State v. Boykins, 50 N.J. 73, 232 A.2d 141
(1967); State v. Smith, 113 N.J.Super. 120, 129, 273 A.2d
68 (App.Div. 1971), certif. den. 59 N.J. 293, 281 A.2d 806
(1971).

Because law enforcement personnel were entitled to rely
upon these cases as establishing the legality of the search
in question, it is the position of the State “that neither
the ‘imperative of judicial integrity’ nor the ‘deterrent pur- -
pose served by the exclusionary rule’ would be served by
the retroactive application of the exclusionary rule in this
ease.” United States v. Calandrella, supra 605 F.2d at
252 citing United States v. Peltier, supra 422 U.S. at 536.
The State urges the Court to deny the petition and thus
follow the rationale of the Second, Fifth, Sixth, Seventh
and Ninth Circuits, which have declined to apply Chad-
wick retroactively. See United States v. Reda, 563 F.2d
510 (2 Cir. 1977), cert. den. 435 U.S. 973 (1978), reh. den.
436 U.S. 923 (1979) ;* United States v. Kranzthor, 614 F.
2d 981 (5 Cir. 1980); United States v. Montgomery, 558
F.2d 311 (5 Cir. 1977); United States v. Calandrella, 605
F.2d 236 (6 Cir. 1979), cert. den. U.S. ——, 100 S.Ct.
522 (1980); United States v. Berry, 571 F.2d 2 (7 Cir.),

* See also United States v. Ochs, 595 F.2d 1247 (2 Cir. 1979).

21

cert. den. 439 U.S. 840 (1978); United States v. Choate,
576 F.2d 165, 182 n. 20 (9 Cir.), Cf. United States v. Dien,
609 F.2d 1038, 1046 (2d Cir. 1979), aff’d 615 F.2d 10 (2
Cir. 1980).

Petitioner’s principal argument for the retroactive ap-
plication of Chadwick is the same as that raised by appel-
lant in United States v. Calandrella. Both Calandrella and
petitioner contended that this Court has “sub silentio”
ruled that Chadwick should be applied retroactively be-
cause it applied Chadwick to its decision in Arkansas v.
Sanders, 422 U.S. 753 (1979) and by denying certiorari in
United States v. Stevie, 443 U.S. 911 (1979). Petitioner
points out that the search in Sanders occurred prior to
the decision in Chadwick and the Highth Circuit’s ruling
in Stevie referred to its prior decision concerning retro-
activity. (Pb13). This argument is wholly without merit.
United States v. Calandrella, supra 560 F.2d at 252. It is
well established that a recently announced principle does
not affect the court’s later determination of retroactivity.
United States v. Peltier, 422 U.S. at 535 n.5; United States
v. Calandrella, supra. Therefore, because the Court did
not discuss retroactivity in Sanders, that issue was clearly
not resolved. Jd. Furthermore, the denial of certiorart
in Stevie imports no statement on the merits of the case.
Id, citing Brown v. Allen, 344 U.S. 448 (1953); United
States v. Carver, 260 U.S. 482, 490 (1923).

Petitioner also contends that the Court’s order of re-
mand in United States v. Schleis, 433 U.S. 905 (1979) sup-
ports his position concerning retroactivity. In its remand,
this Court ordered the Eighth Cireuit to reconsider its de-
cision in light of Chadwick. The State of New Jersey
urges that this contention is also meritless because “it is
at least equally likely that the court remanded the case in
order to permit the Eighth Circuit to consider, inter alia,
the question of retroactivity.” United States v. Calan-

22

drella, supra 605 F.2d at 252. Accord United States v.
Bowen, 500 F.2d 960 (9 Cir. 1974); C. Wright, Law of F'ed-
eral Courts sec. 108 (8d Ed. 1976).

Finally, petitioner asserts that the administrative bur-
den caused by the retroactive application of Chadwick and
Sanders could be avoided by restricting its application to
state court convictions which had become final before Chad-
wick was decided. See Linkletter v. Walker, 381 U.S. 618
(1965). The State respectfully submits that this sugges-
tion would not ameliorate the administrative overburden-
ing which petitioner suggests. Nonetheless, this question
need not be decided because petitioner has failed to demon-
strate that Chadwick and Sanders should be applied retro-
actively. See United States v. Peltier, supra; Stovall v.
Denno, supra.

In sum, petitioner has failed to state a substantial ques-
tion because this court’s decision in Peltier mandates that
Chadwick and Sanders apply prospectively and thus those
rulings do not reach petitioner’s case in which the search
occurred prior to both decisions. Moreover, the State of
New Jersey repeats that the question of retroactivity need
not even be reached because the faets of the present search
fall outside the decision in Chadwick and Sanders. For
these reasons, the petition should be denied.

23

CONCLUSION

Petitioner’s claims notwithstanding, although his
claims implicate the United States Constitution, they are
neither novel nor do they present a substantial question
of law. We therefore urge this Court to deny this
Petition.

Respectfully submitted,

Joun J. Deanan,

Attorney General of New Jersey,
Attorney for Respondents, State of
New Jersey and John J. Degnan, as
Attorney General,

State House Annex,
Trenton, New Jersey 08625.
By: Joun DeCicco,

Assistant Attorney General.

Joun DeCicco,
Assistant Attorney General,
Division of Criminal Justice,
Appellate Section,
Of Counsel.

Mary Ann Kenny Pinceon,
Deputy Attorney General,
Of Counsel and
On the Brief.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0237%3A2. Public record. Not legal advice.